Family Law Bench Book

Personal Protection Orders

I. FILING FOR A PPO

A. Procedure

1. Filing the Petition. The Petitioner must file a Petition with the Court Clerk (Circuit Court Services), in writing, on the appropriate Court-approved form, with required information completed, and signed by the Petitioner to verify that the statements contained in the Petition are true to the best of the declarant’s information, knowledge and belief. (False statements are subject to contempt-of-court penalties.)

2. Required information. The information must specify:

a. The particular facts on which the Petition is based;

b. The conduct the Petitioner wants restrained;

c. Whether the Petitioner is seeking the PPO ex parte;

d. Whether an action (PPO or otherwise) involving the same parties has been commenced or concluded in another jurisdiction;

e. (If known by the Petitioner) whether the Respondent has a license to carry a concealed weapon and carries a weapon as a condition of employment.

3. Circuit Court Checklist. The Petitioner must also complete the first two sections of the Clerk’s checklist, but leave the last two for the Court to complete.

4. Confidentiality. If the Petitioner wishes to keep his or her residential address confidential, that address may be omitted from documents filed with Circuit Court Services, but the Petitioner must complete the Confidential Mailing Address Form, providing the Clerk with a mailing address, and file it with Circuit Court Services.

5. Fee. There is no filing fee.

6. Representation. A Petitioner may proceed with or without counsel.

7. Notice to Prior Court. Where another court has existing jurisdiction over custody or parenting time matters involving the parties’ minor children, the Court must notify the court with jurisdiction by mailing that court Form MC 28, Notice to Prior Court of Proceedings Affecting Minor(s). MCR 3.706; MCR 3.205.

A domestic relations PPO case will be coded as PP, a non-domestic relations case will be coded as PH, and a PPO case against a minor will be coded as PJ.

B. Limitations:

1. Separate action. A PPO action is an independent action and must be filed separately from other existing actions. A PPO action cannot be initiated by filing a motion in an existing case or by joining a claim to another action. MCR 3.703.

2. Due process. PPOs must be issued in accordance with rights of due process and the standards set by statute and applicable court rules. A PPO cannot be issued on an ex-parte basis unless the Petition sets forth specific facts that clearly show that:

a. immediate and irreparable injury, loss or damage will result from the delay required to serve notice on the Respondent, or

b. the notice will itself precipitate adverse action before a PPO could otherwise be issued. MCR 3.705(A)(2).

3. Non-mutuality. PPOs cannot be made mutual: if both the Petitioner and the Respondent want PPOs against the other, each must properly file for his/her own.

4. Bar against parent-child PPOs:

a. A parent cannot obtain a PPO against his/her own unemancipated minor child.

b. PPOs cannot be obtained by a minor child against a parent, or on behalf of a child against a parent. Requests for protection against a parent for a child found in this County should be submitted to Children’s Protective Services (Family Independence Agency), 22 Center Street, Ypsilanti, 48198), (734) 481-9110, or to the Juvenile Unit of this Court.

5. Next Friend. If the Petitioner is a minor or a legally incapacitated individual, the Petition must be filed through a Next Friend. MCR 3.703(F).[1] The Petitioner should use the Next Friend form(s) (see Appendix) designed for this purpose. The case should be coded as either a PP or PH case.

6. Premises restraints. A domestic-relations PPO cannot restrain entry onto premises if the parties are not married and the Respondent has a property interest in the premises but the Petitioner does not. However,

a. If the parties are married, the Petitioner can obtain a restraint on entry onto the premises against the Respondent (if factually justified), whether both or only one has a property interest in those premises;

b. If the parties are not married, but both have a property interest in the premises, the Petitioner can obtain a restraint on entry against the Respondent (if factually justified);

c. If the parties are not married and the Petitioner has an interest in the premises but the Respondent does not, the Petitioner can obtain a restraint on entry against the Respondent.

C. Domestic Relationships

1. Against an adult. Form CC 375, Petition for Personal Protection Order (Domestic Relationship), may be used if the parties:

a. Are spouses.

b. Are former spouses.

c. Reside or have resided in the same household.

d. Have a child in common.

e. Have or had a dating relationship.

2. Against a minor. Form CC 375M, Petition for Personal Protection Order Against Minor (Domestic Relationship), may be used against a minor (under 18 years) who is not the unemancipated child of the Petitioner.

3. Scope. If the Court grants a Petitioner’s request for a domestic relations PPO, it may prohibit the Respondent from acting in one or more of the following ways:

a. Entering onto premises (but see Part I.B.6, above).

b. Assaulting, attacking, beating, molesting, or wounding a named individual.

c. Threatening to kill or physically injure a named individual.

d. Removing minor children from the individual having legal custody of the children, except as otherwise authorized by a custody or parenting time order issued by a court of competent jurisdiction. (A Petitioner seeking relief of this type must identify the name of the court that issued the order(s), the case number, and the date(s) of the order(s) involved.)

e. Purchasing or possessing a firearm.

f. Interfering with the Petitioner's efforts to remove the Petitioner's children or personal property from premises that are solely owned or leased by the individual to be restrained or enjoined.

g. Interfering with the Petitioner at the Petitioner's place of employment or education or engaging in conduct that impairs the Petitioner's employment or educational relationship or environment.

h. Having access to information in records concerning a minor child of both the Petitioner and the Respondent that will inform the Respondent about the address or telephone number of the Petitioner and the Petitioner's minor child or about the Petitioner's employment address. (A Petitioner seeks relief of this type must identify the County of access.)

i. Engaging in conduct that is prohibited under section 411h (stalking) or 411i (aggravated stalking) of the Michigan penal code, MCL 750.411h and 750.411i (see Part D.3., below).

j. Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.

D. Non-Domestic Relationships:

1. Against an adult. Form CC 377, Petition for Personal Protection Order Against Stalking (Non-Domestic Relationship) may be used in non-domestic relationships.

2. Against a minor. Form CC 377M, Petition for Personal Protection Order Against Stalking by a Minor (Non-Domestic Relationship), may be used against a minor (under 18 years) who is not the unemancipated child of the Petitioner.

3. Definitions:

a. “Stalking” is defined as “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” MCL 750.411h.(1)(e), 750.411i(1)(e) .

b. “Course of conduct” is defined as two or more offenses with the same purpose.

c. “Unconsented contact” – If the Court grants a request for a PPO against stalking, the Court’s order may additionally prohibit the Respondent from “unconsented contact” with the Petitioner, which may include but is not limited to:

Ø Following or appearing within the sight of the Petitioner.

Ø Approaching or confronting the Petitioner in a public place or on private property.

Ø Appearing at the Petitioner's workplace or residence.

Ø Entering onto or remaining on property owned, leased, or occupied by the Petitioner.

Ø Contacting the Petitioner by telephone.

Ø Sending mail or electronic communications to the Petitioner.

Ø Placing an object on, or delivering an object to, property owned, leased, or occupied by the Petitioner.

II. ISSUANCE , EFFECT AND ENFORCEMENT

A. Procedures

PPOs may be issued after a hearing, or on an ex-parte basis. The manner of issuance governs the nature of the proceedings, the means of notice and (because an ex-parte PPO must have a minimum duration of 182 days, but there is no duration requirement for other PPOs) the duration of the order itself. Ex-parte orders are addressed more particularly in Part III, below; however, in all cases the following is true:

1. Documentation; physical signs. A Petition may be supplemented with supporting documentation, such as a police report, a medical report, a report or finding of an administrative agency. However, the issuance of a PPO does not depend on the presence or absence of such documentation, nor the presence or absence of physical signs of abuse or violence.

2. Reasonable cause standard for issuing a domestic relations PPO. On a domestic relations Petition, the Court must issue a PPO if it determines that there is reasonable cause to believe that the Respondent may commit one or more of the acts that a PPO can restrain or enjoin. In determining whether reasonable cause exists, the Court must consider:

a. Testimony, documents, or other evidence offered in support of the Petition; and

b. Whether the Respondent has previously committed or threatened to commit those acts. MCL 600.2950.

3. Threshold standard for issuing a non-domestic (stalking) PPO. A Petition for a PPO against stalking cannot be granted unless the Petition alleges facts that constitute stalking as statutorily defined (see Part I.D.3, above).

4. County of application. A Petitioner may submit a Petition in any county in Michigan, regardless of whether that county is any party’s county of residence, or the site of any actual or anticipated activity, or any related litigation. However,

a. If the Petition is filed in the same court as a pending action, or existing orders or judgments affecting the parties, the case will be assigned to the same judge;

b. If there are pending actions or existing orders and judgments affecting the parties in another court, the Court to which the Petitioner applied should contact the other court, if practicable, to determine relevant information;

c. If a prior action resulted in an order of continuing jurisdiction over a minor who is or will be affected by the relief requested in the Petition, the Court must send Form MC 28, Notice to Prior Court of Proceedings Affecting Minor(s), to the court of jurisdiction and, where practicable, contact the court of jurisdiction regarding that impact, including impact upon custody and parenting rights, before issuing the PPO, http://courts.mi.gov/scao/courtforms/general/mc28.pdf ;

d. A Respondent may move for a change of venue to another County, which the Court may grant if the forum is inconvenient and the other County accepts the change in venue.

5. Notice of hearing; service. The Respondent is entitled to notice of any hearing set by either the Court or the Petitioner, whether pursuant to the Petition or after denial of a request for an ex-parte PPO. The Petitioner must arrange for service of the Petition and Notice of Hearing upon the Respondent. Personal service is preferred because of the short notice period (see below); however, service may also be by registered mail, delivery restricted to Respondent, return service requested. If the Respondent is a minor, the Petitioner must also serve the Respondent’s parent(s), guardian(s) or custodian(s), if their whereabouts are known.

Form CC 381, Notice of Hearing on Petition for Personal Protection Order, available from Circuit Court Services, should be used.

6. Notice period; proof of service. The Court may order a period for notice; otherwise, one day before the hearing is deemed sufficient notice. Proof of service must be filed with Circuit Court Services. MCR 3.705(B)(2); MCR 2.105(A).

7. Disposition options. If a hearing has been set pursuant to a Petition, or, after a denial of a request for an ex-parte PPO, by the Court or upon Petitioner’s request the Court may, at the time of hearing:

a. Grant or deny the PPO, stating the reasons for doing so on the record and, if the PPO is denied, stating specifically the reasons for denial in the written order;

b. Grant the PPO on the basis of the Petitioner’s statements alone if the Respondent does not appear despite service, or despite diligent attempts to serve, if the Petitioner appears entitled to relief;

c. Dismiss the Petition, or adjourn and reschedule the hearing if the Petitioner does not attend.

If denying or dismissing the Petition, the Court may choose to use Form CC 383, Order Denying Or Dismissing Petition for Personal Protection Order, or issue its own order.

8. Dismissal of action. Unless dismissed by the Court, an action for a PPO order may be dismissed only upon the Petitioner’s Motion prior to the issuance of an order. Form CC 378, Motion and Order to Dismiss Action for Personal Protection Order, may be used.

9. PPO requirements. A PPO must describe the conduct restrained or enjoined, the penalties for violation, the date of expiration, and the law enforcement agency responsible for LEIN entry.

10. Impact on and precedence over existing custody/parenting time order. A PPO takes precedence over any existing custody or parenting time order until the PPO has expired, or until the court having jurisdiction over the custody/parenting time order modifies that order to accommodate the conditions of the PPO:

The Court issuing the PPO must contact the court with jurisdiction over the custody/parenting time order by sending the court Form MC 28, Notice to Prior Court of Proceedings involving Minor(s).

Where practicable, the issuing Court shall consult with the court with jurisdiction regarding the impact of a PPO before issuing it;

If the Respondent’s custody or parenting time rights will be adversely affected by the PPO, the issuing Court shall determine whether conditions should be specified in the PPO that will accommodate the Respondent’s rights;

If either party wants an existing custody or parenting time order modified, that party must file a motion with the court having jurisdiction of the custody/parenting time order and request a hearing. The hearing must be held within 21 days after the motion is filed;

A PPO case filed in the same court as the court with jurisdiction of the custody/parenting time case will be assigned to the same judge (based on the Petitioner’s acknowledgment of the pending custody/parenting time case).

11. Effectiveness and enforceability:

a. A PPO is effective and immediately enforceable anywhere in this state, by any law enforcement agency, when signed by a judge.

b. Upon service, a PPO is enforceable in all other jurisdictions (state, Indian tribe, or territory) in the United States as well.

12. LEIN entry. The PPO will designate a law enforcement agency (normally, Washtenaw County Sheriff’s Department) and will direct the court clerk to file the order with that agency, which will then enter the PPO into the Law Enforcement Information Network (LEIN).

13. Service. The Respondent must be served personally or by registered mail, delivery restricted to the Respondent, return receipt requested, unless the Court allows otherwise on an appropriate showing. The Petitioner may NOT personally serve the Respondent with the PPO. MCR 3.706(D); MCR 2.103(A); MCR 2.105(A).

a. The Respondent may be served with the PPO or given oral notice of the PPO by a law enforcement officer in the course of responding to an alleged violation, or at any other time.

b. The court clerk may also give oral notice.

c. Oral notice requires advising the Respondent that the PPO exists, the conduct it enjoins, the penalties for violating the PPO, and where the Respondent can obtain a copy of the PPO.

d. Such proof of service or oral (actual) notice must also be entered into the LEIN, and filed with Circuit Court Services. The person who performed the service or notice should use Form CC 386, Proof of Service/Oral Notice Regarding Personal Protection Order.

16. Necessity of service or notice. Absent evidence of notice, a law enforcement officer responding to an alleged violation cannot proceed to an arrest without first giving the Respondent an opportunity to comply with the PPO. However, the failure to immediately comply with the PPO is grounds for arrest, as is any violation of the PPO after service and/or notice. MCL 600.2950(22); MCL 600.2950a(19).

B. Penalties

A Respondent who refuses or fails to comply with a PPO is subject to arrest, and to the contempt powers of the Court. See Part V, Contempt Proceedings for Violation of a PPO; Penalties. Contempt-of-court proceedings and penalties do not preclude additional criminal proceedings and penalties for other offenses arising from the same conduct.

III. EX-PARTE ORDERS

A. Requirements for an Ex-Parte PPO

1. Due process. All PPOs must be issued in accordance with due process requirements and the standards set by statute and applicable court rules.

2. Immediate and irreparable harm/adverse action standard. Ex-parte orders are intended to be very limited and cautiously-made exceptions to the due process requirements of notice and an opportunity to be heard. To create such an exception to due process, the Court must have good reason to believe that irreparable harm to the Petitioner from the Respondent is so immediate a likelihood that the Respondent’s right to due process must be temporarily disregarded or that notice itself will trigger adverse action.

3. Specific facts required. In order to obtain a PPO ex parte, the Petitioner must provide the Court with a sound and specific factual basis meeting one of those standards; i.e., facts showing

a. That immediate and irreparable injury, loss or damage will result from the delay required to serve notice on the Respondent, or

b. That the notice will itself precipitate adverse action before a PPO can be issued.

4. 182-day minimum. A PPO issued ex parte must be for a minimum of 182 days.

B. Procedure

1. 24-hour review requirement. The Court must rule on a request for ex-parte order within 24 hours of the filing of the petition.

2. Options on review. The Court’s options are:

a. To grant the PPO ex parte (and, in a stalking case, state the reasons in writing) for a period of no less than 182 days if the Petition meets the standards for showing that the situation warrants a departure from standard due process; i.e., specific facts clearly showing certain, immediate and irreparable harm from the delay in giving notice or the likelihood of adverse action caused by giving notice;[3]

b. To schedule an interview with the Petitioner to determine whether the claims are meritorious, and then grant or deny the PPO ex parte.

c. To deny the ex-parte PPO in whole or in part, stating specifically the reasons in writing, but advise the Petitioner of the right to request a hearing on the Petition itself within 21 days of entry of the order (and to schedule a hearing as soon as possible if the Petitioner requests a hearing accordingly);

d. To deny the ex-parte PPO in whole or in part, stating specifically the reasons in writing, but set a hearing on its own motion;

e. To deny the PPO without advising the Petitioner of the right to request a hearing if, after interviewing the Petitioner, the Court determines that the claims are sufficiently without merit that the action should be dismissed without a hearing. If denying or dismissing the Petition, the Court may choose to use the Form CC 383, Order Denying Or Dismissing Petition for Personal Protection Order, or issue its own order.

3. Service; proof of service. If the ex-parte PPO is granted, the Petitioner is responsible for arranging for service of the Petition and PPO, through arranging for personal service, or service by registered mail, delivery restricted to the Respondent, return receipt requested. The Petitioner may NOT personally serve the Respondent with the PPO. The proof of service must be filed with Circuit Court Services. MCR 3.706(D); MCR 2.103(A); MCR 2.105(A).

4. 14-day limitation on Respondent’s time for objection to ex-parte PPO and requesting a hearing. If the ex-parte PPO is granted, the order will advise the Respondent of his/her right to object and request a hearing. A motion to terminate or modify the ex-parte PPO must be filed within 14 days of service or actual notice, unless good cause is shown for not filing within that time period. This 14-day restriction applies only to PPOs that are granted ex parte. See Part IV. Termination, Modification or Extension of PPOs.

5. 21-day limitation on Petitioner’s time for requesting a hearing; finality. If the ex-parte PPO is denied but the order denying the PPO advises the Petitioner of the right to a hearing, the denial becomes final if the Petitioner does not request a hearing within 21 days of the order.

C. Hearing On Petitioner’s Request after Denial of Ex-Parte PPO

Evidentiary hearing. If the Court denies the Petition for an ex-parte PPO, and the order advises the Petitioner of the right to request a hearing, the following applies:

1. 21-day hearing provision; finality. The hearing must be requested and scheduled within 21 days of entry of the order denying the request for an ex-parte order. After 21 days, the denial becomes a final order, and a new Petition will need to be filed.

2. Scheduling, notice and service requirements. The Petitioner is responsible for:

a. Obtaining the Notice of Hearing form from Circuit Court Services;

b. Scheduling the hearing through Central Assignment;

c. Completing the Notice of Hearing; and

d. Arranging service of the Petition and Notice of Hearing upon the Respondent. Personal service is preferred because of the short notice period; however, service is permitted by registered mail, delivery restricted to the Respondent, return receipt requested.

The Petitioner may NOT personally serve the Respondent. One day before the hearing is sufficient notice. Proof of service must be filed with Circuit Court Services. MCR 3.705(B)(2); MCR 2.103(A); MCR 2.105(A).

3. Petitioner’s attendance. The Petitioner must appear for the hearing, regardless of whether it is scheduled by the Petitioner or the Court. If the Petitioner fails to attend the hearing, the Court may adjourn and reschedule the hearing, or it may dismiss the Petition.

4. Respondent’s attendance. If the Respondent fails to appear at the hearing despite notice, or despite diligent attempts to serve notice upon the Respondent, the Court may still grant the PPO if the Petitioner appears entitled to relief.

5. Rules of evidence. The rules of evidence apply to these hearings. MRE 101, 1101.

6. Articulated reasons. At the conclusion of the hearing, the Court must state the reasons for granting or denying a PPO on the record and enter an appropriate written order which specifically states the reasons for denial and, in a stalking case, the specific reasons for granting the PPO.

7. Expiration. If the Court grants the PPO, the Court shall set an expiration date, which the PPO must reflect.

IV. TERMINATION, MODIFICATION OR EXTENSION OF PPOS

A. Termination or Modification

Either party may file a Motion to terminate or modify a PPO, using Form CC 379, Motion to Modify, Extend or Terminate PPO:

a. The Petitioner may file a Motion to terminate/modify at any time after a PPO has been issued.

b. However, a Respondent’s Motion must be filed within 14 days of service or actual notice of an ex-parte PPO unless good cause (as determined by the Court) is shown for a later filing. [4]

2. Hearing date; service by registered/certified mail. The moving party is responsible for obtaining a hearing date, completing a Notice of Hearing, and serving the Motion and Notice of Hearing upon the other party by registered or certified mail, return receipt requested, delivery restricted to the addressee at the mailing address provided to the Court, at least 7 days before the hearing. Exceptions:

a. On an appropriate showing, the Court may allow service in another manner;

b. If the moving party is the Respondent, who is moving to modify or terminate a PPO that prohibits him/her from possessing or purchasing a firearm, and the Respondent is a law enforcement officer or otherwise licensed to carry a concealed weapon and required to do so as a condition of employment, providing notice one day before the hearing is deemed sufficient notice to the Petitioner.

3. Proof of service. Proof of service must be filed with Circuit Court Services.

4. 14-day requirement; exception. The Court must schedule and hold a hearing within 14 days of the filing of the motion. Exception: If the moving party is the Respondent, and the Respondent is a law enforcement officer or otherwise licensed to carry a concealed weapon and required to do so as a condition of employment, the Court must schedule the hearing on the Motion within 5 days of filing date.

5. Updating the LEIN. If a PPO is modified or terminated, Circuit Court Services must immediately notify the law enforcement agency specified in the PPO of the change so that the LEIN may be updated. Form MC 239, Removal of Entry From Lien, should be used for a terminated PPO.

6. Disposition; applicable rules; order. At the hearing, the Court may grant or deny the Motion in whole or in part, or may set the matter for an evidentiary hearing in order to make a final determination. The Michigan Court Rules, including the Rules of Evidence, apply to these hearings.

B. Extension of a PPO

1. The Petitioner may file an ex-parte Motion to extend a PPO, without a hearing, by requesting a new expiration date, using Form CC 379, Motion to Modify, Extend or Terminate PPO. There is no motion fee.

2. Time of filing. The Motion must be filed no later than 3 days before the order is to expire. Failure to comply with this rule will require the Petitioner to file a new PPO action to obtain the relief sought against the Respondent.

3. Court action; options. The Court must act on the Motion within 3 days after it is filed. The Court’s options are:

a. To grant the order for extension ex parte;

b. To schedule a hearing;

c. To deny the request without a hearing.

4. Amended PPO. If the extension is granted, an Amended PPO must be entered.

5. Updating the LEIN. Circuit Court Services must immediately notify the designated law enforcement agency of the change so that the LEIN may be updated.

6. Service. The Petitioner is responsible for serving the Amended PPO on the Respondent, by personal delivery, delivery to someone suitable at the Respondent’s address, or by ordinary mail to Respondent’s address. MCR 3.707; 2.107.

7. Respondent’s rights. The Respondent has the same rights with regard to the Amended PPO as with the original PPO.

V. CONTEMPT PROCEEDINGS FOR VIOLATION OF A PPO; PENALTIES

A. Initiating Contempt Proceedings

1. Criminal contempt. The statutes governing PPOs provide that an individual 17 years or more who refuses or fails to comply with a PPO is subject to the criminal contempt powers of the Court. MCL 600.2950(23); MCL 600.2950a(20).[5]

2. The possibility of civil contempt. However, the statutes also recognize that a Court may alternately find a violator in civil contempt, and require the PPO to inform the Respondent that violation will subject him/her to “immediate arrest and the civil and criminal contempt powers of the court …” MCL 600.2950(11)(a)(i); MCL 600.2950a(8)(a)(i) (emphasis added).[6]

3. Means. The two most usual routes by which contempt proceedings are initiated are: through the operation of law enforcement, or through a Petitioner’s Motion.[7]

B. Initiation by Operation of Law Enforcement; Pre-Trial Procedures

1. Arrest; legal custody. A law enforcement officer may arrest a Respondent and take him/her into custody for conduct that allegedly violates a PPO:

a. Without a warrant, if in the course of responding to an alleged violation, the officer has reasonable cause to believe that the Respondent has violated or is violating the terms of an existing PPO. MCL 764.15b.

b. Subject to a Bench Warrant issued by the Court.

2. 24-hour arraignment requirement. A Respondent who has been arrested in Washtenaw County for conduct allegedly in violation of a PPO issued by a Court in any County in Michigan must be arraigned in the Family Division of the Washtenaw County Circuit Court within 24 hours of the arrest.[8]

3. Violations of a PPO issued by another county. A contempt proceeding brought in Washtenaw for alleged violation of a PPO issued in another county must be entitled “In the Matter of Contempt of [Respondent].”

4. Arraignment procedure. At the time of arraignment, the arraigning Court must:

a. Advise the Respondent of the alleged violation and possible penalties;

b. Advise the Respondent of the right to contest the charge at a contempt hearing;

c. Advise the Respondent that s/he is entitled to a lawyer’s assistance at the hearing and, if the Court determines that it might sentence the Respondent to jail, that the Court will appoint a lawyer at public expense if the Respondent wants one and is financial unable to retain one; and

d. Accept a guilty plea, if appropriate, in accord with MCR 3.708(E);

OR:

e. Appoint a lawyer if requested and appropriate;

f. Set a time for hearing on the alleged contempt in the Family Division of the Washtenaw County Circuit Court. The hearing must be scheduled to occur within 72 hours of the arrest, unless either the Prosecutor or the Respondent move for an extension of time, or there is otherwise good cause in the record for an extension. MCR 3.708(F)(1); MCL 764.15b(2)(a); In re Contempt of Tanksley, 243 Mich App 123 (2000).

g. Set a reasonable bond pending the hearing, unless the Court determines that release will not reasonably ensure the safety of the person(s) named in the PPO.

Ø The bond may predicate release on any condition specified in MCR 6.106(D) that are necessary to reasonably ensure the safety of the named individual(s).

Ø The release order must comply with the requirements and conditions set forth in MCL 765.6b.

h. Notify the Prosecuting Attorney of the criminal contempt proceeding (in a contempt hearing following an arrest pursuant to MCL 764.15b, the Prosecuting Attorney shall prosecute the proceeding unless the Petitioner retains his/her own attorney for the proceeding).

i. Notify the Petitioner and his/her attorney of record, if any, and direct the Petitioner to appear at the hearing and give evidence on the charge of contempt.

C. Initiation by Petitioner’s Motion; Pre-Trial Procedures

1. Petitioner’s Motion; Affidavit. If the Petitioner believes that the Respondent has violated the PPO, the Petitioner may file a Motion for an Order to Show Cause, with an appropriately detailed Affidavit in support. Form CC 382, Motion and Order to Show Cause for Violating Valid Personal/Foreigh Protection Order, may be used.

c. The Affidavit must state with specificity factual allegations that will support a finding of contempt.

d. The Affidavit must contain the required verification by a person with personal knowledge of the facts alleged.

2. Denial for insufficient basis. The Court must deny the Motion if the Motion and Affidavit do not establish a basis for contempt.

3. Sufficient basis. If the Motion and Affidavit establish a basis for contempt, the Court shall proceed on the statutory basis that violations of PPOs are subject to the criminal contempt powers of the Court., unless it determines that the evidence may support, or the preferred outcome may direct, a finding of civil contempt.

4. Court directives. After determining that the alleged conduct constitutes contempt of Court, the Court may:

a. Issue an Order to Show Cause that directs the Respondent to appear at a specified time to answer the contempt charge; or

b. Issue a Bench Warrant for the Respondent’s arrest.

5. Advisement requirement. The Order to Show Cause or Bench Warrant should inform the Respondent that s/he is charged with criminal contempt, but alternately may be found in civil contempt.

6. Personal service. If the Court issues an Order to Show Cause, the Petitioner must arrange for personal service of the Motion and Order on the Respondent, at least 7 days before the show-cause hearing. The Petitioner may NOT serve the Respondent personally. MCR 3.708(B)(2); MCR 2.103(A).

7. Procedure pursuant to a Bench-Warrant arrest. If the Court has issued a Bench Warrant, pursuant to which the Respondent has been arrested, the Court must follow the procedures listed in Subsection V.B.4., above.

8. Other first appearance. If the Respondent’s first appearance before the Court on the alleged violation is not for arraignment, but in response to an Order to Show Cause or otherwise,[9] the Court must:

a. Advise the Respondent of the alleged violation and the possible penalties.

b. Advise the Respondent of the right to contest the charge at a contempt hearing.

c. Advise the Respondent that s/he is entitled to a lawyer’s assistance at the hearing and, if the Court determines that it might sentence the Respondent to jail, that the Court will appoint a lawyer at public expense if the Respondent wants one and is financially unable to retain one.

d. Accept a guilty plea, if appropriate, in accord with MCR 3.708(E);

OR:

e. Appoint a lawyer if requested and appropriate.

f. Set a time for hearing on the alleged contempt at the earliest practical time. MCR 3.708(F)(1).

g. Notify the Prosecuting Attorney of the criminal contempt proceeding.

h. Notify the Petitioner and his/her attorney of record, if any, and direct the Petitioner to appear at the hearing and give evidence on the charge of contempt.

2. Prosecution pursuant to Motion, Bench Warrant or Show Cause Order. In other criminal contempt cases,

a. the Court may appoint the Prosecuting Attorney; or a disinterested private attorney if the Prosecuting Attorney declines a Court appointment;[10] or

b. the Petitioner may be represented by retained private counsel.

3. Bench trial. There is no right to a jury trial.

4. Respondent’s rights. The Respondent has the right to be present at the hearing, to present evidence, and to examine and cross-examine witnesses.

5. Rules of evidence. The rules of evidence apply to both criminal and civil contempt proceedings. MCR 3.708(H)(3).

6. Burden of proof. The Petitioner or the Prosecuting Attorney has the burden of proving the Respondent’s guilt of criminal contempt beyond a reasonable doubt, and the Respondent’s guilt of civil contempt by clear and convincing evidence.

7. Disposition. At the conclusion of the hearing, the Court must find the facts specifically, state separately its conclusions of law, and direct entry of the appropriate judgment.

8. Ruling; order. The Court’s findings and conclusions must be stated on the record, or in a written opinion that is made part of the record. The Court may issue its own order or use SCAO-supplied forms:

1. Criminal contempt. If the Respondent pleads or is found guilty of criminal contempt, the Court shall impose a jail sentence of no more than 93 days, and may impose a fine of no more than $500.

2. Civil contempt. If the Respondent pleads or is found guilty of civil contempt, the Court shall sentence the Respondent as follows:

a. A jail sentence that will terminate upon the Respondent’s performance or upon the loss of ability to perform the act or duty and payment of the fines, costs, and expenses of the proceedings, to be specified in the order of commitment; and

b. If applicable, payment of damages in an amount to indemnify the Petitioner for actual loss or injury caused by the Respondent’s violation. These may include attorney fees.

3. Other conditions. The Court may additionally impose other conditions to the PPO.

V. POST-JUDGMENT RELIEF

A. Appeals

1. Appeals of right from a final order after a hearing:

a. An aggrieved party may appeal by right a final order issued after a hearing in a PPO case. MCR 3.709(B)((1).

Ø The Petitioner may appeal the Court’s denial of a PPO after a hearing on the Petition;

Ø The Respondent may appeal the Court’s grant of a PPO after a hearing on the Petition;

Ø If an ex-parte order was entered, the Respondent may appeal the Court’s ruling on the Respondent’s first Motion to Terminate or Modify.

b. A Respondent may appeal a sentence for criminal contempt entered after a contested hearing. MCR 3.709(C)((1).

2. Appeals by leave. Appeals of all other orders concerning the PPO, or concerning violation proceedings are by application for leave. MCR 3.709(B)((2), (C)(2).

[1] The Petitioner must certify that the next friend is not disqualified by statute and is an adult. The Court must appoint a next friend if the minor is less than 14 years of age; otherwise, the next friend may act on behalf of the Petitioner without appointment. The next friend is not responsible for the costs of the action. MCR 3.703(F).

[3] This option includes a decision to grant the PPO after instructing the Petitioner to supply supplemental information or documentation necessary to support the decision.

[4] MCR 3.707(b). The Rule does not specifically use the term “ex parte” (“The respondent may file a motion to modify or terminate the personal protection order and request a hearing within 14 days after being served with, or receiving actual notice of, the order, unless good cause is shown for filing the motion after the 14 days have elapsed”). However, MCR 3.706(A)(7), MCL 600.2950(11)(g), (13), (14), and MCL 600.2950a(8)(g), (10), and (11), all address a Respondent’s right to a hearing solely in the context of an ex-parte PPO. In other words, the applicable statutes and court rules do not appear to contemplate allowing the Respondent more than one opportunity to challenge a Petition and/or PPO and, unless the PPO is issued ex parte, the usual opportunity would occur at a duly noticed hearing. The Respondent would presumably have the alternative of seeking relief under MCR 2.612, if necessary.

[5] Violators aged less than 17 years are subject to immediate apprehension or custody, and to the dispositional alternatives of MCL 712A.18. Proceedings are governed by MCR 3.901 et seq.

[6] Generally, civil contempt describes an omission to perform an act or duty that is still within the Respondent’s power to perform, and which the Court can compel through its coercive powers. Most PPO violations involve conduct of commission rather than omission.

[7] Direct contempt, i.e., a violation witnessed by the Judge in Court, may be summarily punished by that Judge pursuant to MCL 600.1711(1); however, if proceedings are deferred, the procedures set forth in Part V.B. apply.

[8] MCR 3.708(D) provides that if no circuit judge is available for arraignment during that 24-hour period, a District Court must set the bond and order the Respondent to appear for arraignment before the Family Division. See also MCL 764.15b(3).

[9] Where the Respondent’s first appearance occurs in response to a show-cause order, the Court cannot proceed with the actual show-cause hearing until this pretrial procedure has been satisfied. What constitutes the earliest practical time for the actual hearing will depend on the adequacy of representation for both parties at the time of the first appearance, among other factors.